Monday, November 14, 2011

Will new Texas' eyewitness ID law reduce false convictions?

In a short piece at the Austin Chronicle on Texas' new eyewitness ID law and the draft model statute, Jordan Smith wonders "how quickly the policy might be adopted" at Austin PD, leading me to point out that, by statute, local departments must adopt eyewitness ID policies by September 2012. That's why the Sam Houston State Law Enforcement Management Institute of Texas has to produce a "model policy" by the end of the year to give them time to develop their own policies, using the components in the SHSU model as guidance. (See SHSU's draft policy; they're presently soliciting public comments between now and Nov. 30 before the policy is finalized in December.)

Smith mentions as one flashpoint the odd assertion in the model policy Grits disputed earlier, that "live lineups are preferable to photo IDs because 'witnesses typically view perpetrators of crimes in three dimensions.'" I agree, I hope that's omitted from the final version. But Jordan failed to point out that, with that notable exception, the rest of the draft model policy, though perhaps not written as clearly or organized as well as one might prefer, mostly contains the key "best practice" elements which national standards and memory researchers have encouraged departments to include in such policies. It could stand to be tweaked but they didn't do a terrible job.

However, Smith expresses skepticism about the new law's ultimate impact that I do not share, though I know where it comes from (indeed, it comes in part from my boss at the Innocence Project of Texas, Jeff Blackburn, who's been spreading this meme): I just consider it a result of courtroom lawyers' myopia. Smith's article concluded: "Without any enforcement mechanism, it is unclear how quickly the policy might be adopted – and whether the new procedures will reduce the instance of mistaken identifications. Indeed, the new law contains no provision to keep out of evidence identifications made outside the parameters of the model policy."

What she means is, although a defense attorney can question police in front of a jury about why they didn't follow their policy, the eyewitness testimony still gets in. Regrettably, and for reasons I'll never fully understand, back in 2009 when the bill language was being negotiated, the Texas Criminal Defense Lawyers' Association vigorously opposed inclusion of a "jury instruction" in lieu of the exclusionary rule (which the Governor's office had said would draw a veto) as a remedy. Exhibiting all the subtlety and foresight of a kamikaze pilot, after working as hard as they could to neuter the bill, TCDLA then opposed it for being too weak. (In 2011, a different lobbyist for the group supported the watered-down version of the bill that eventually passed.)

When a trial lawyer says there is no remedy, they mean that, at trial, if eyewitness evidence gathered via flawed procedures is introduced and the defense objects, they cannot get it excluded or even be certain of a jury instruction, though under a recent precedent they possibly can get an expert witness to explain problems with the lineup and the sources of eyewitness error. So jurors may hear experts question the validity of a problematic lineup or photo array under Texas law, but courts are not required to exclude testimony gathered under questionable circumstances, nor even to instruct the jury that failing to follow best practices increases the likelihood of error.

That's a legitimate critique, and from the perspective or a courtroom advocate, I might agree with it. But here's what it misses: 97% of criminal convictions are plea bargained and never reach a jury trial. Many more are dismissed after eyewitness evidence is discredited on the front end. Plus many eyewitnesses are wholly credible: E.g., witnesses who previously knew the suspect don't suffer the same memory problems as those trying to identify strangers. So in the vast majority of cases involving eyewitness evidence, that lack of a courtroom remedy for the 3% of cases that go to trial doesn't really matter. The number of cases in which such a remedy might come into play would be symbolically important but statistically de minimis.

Meanwhile, 88% of Texas departments have no written policy at all on how to handle eyewitness identifications, and only a few of those with written policies follow anything close to best practices. Forcing departments to think through these issues, examine SHSU's model policy and others, decide on a method, then train on it over time will be a big improvement compared to the current practice, where methods differ not just from department to department but literally from detective to detective.

So from a public policy perspective, this statute will encourage consistency, uniformity (at least within departments and to a large extent across agencies) and training on a subject presently governed by departmental lore supplemented by examples from TV detective shows. From past experience, you can expect the majority of Texas 1,000+ departments that perform lineups (with the likely exception of some of the largest ones, which will write their own from scratch) to adopt the LEMIT policy wholesale, or at least in large part. So it's important for LEMIT to end up with the best model policy possible.

Once local policies are in place next September, my employers at the Innocence Project of Texas will be gathering as many as possible under the Public Information Act and grading local policies to identify those following best practices and those whose policies are deficient. So there will be at least some external oversight to ensure local policies aren't a complete joke, even if it's not from a government agency. I'm looking forward to that project.

Certainly Grits would prefer that the law had more "teeth" - if police failure to comply with proper procedures garnered a jury instruction, for example, or if departments didn't have the option to adopt a weaker policy. But this was the compromise achieved at the Lege, and compared to the status quo the law at least provides a starting point for improving police practices, certainly compared to the absolute void that preceded the bill. Departments with no policies (88% of them) where procedures vary from officer to officer will now have to decide how they want to perform lineups, write it down, and train everybody on the same method. Even if it's not precisely the method Grits, the Innocence Project, the National Institute of Justice, or LEMIT might prefer, once it exists in writing, it's possible to argue to change it. And of course it's always possible to go back to the Lege to add a remedy in the future if departments react with extreme noncompliance. While this bill was an important first step, I don't suspect it will be the last word on eyewitness identification procedures at the Texas Legislature.

Nice try! It would be going WAY too far, 10:21, to say the witness is therefore "reliable." Reducing errors at the margins does not ensure "reliability."

That said, if the jury instruction went both ways, I could see in a perfect world saying, when it was done right, that the evidence was gathered according to best practices designed to reduce errors; or not, when it wasn't.

Alas, though, we do not live in a perfect world, and since the new law doesn't require departmental policies to conform with LEMIT or national best practices, for now you couldn't honestly say much more to a jury than that the department did or didn't follow their own policies, which is a far cry from saying an eyewitness is presumptively "reliable."

How many of those false convictions that we blame on eyewitness testimony also have prosecutorial misconduct associated with them? Kerry Cook and Anthony Graves come to mind. How many more fall into this category?

"3:09, give me a break! The sky is not falling. Everything will be okay. Didn't Kerry Max Cook plead guilty? Next topic."

Do your research before you spout off. Cook didn't plead guilty. He pled no contest and was given time served. At the time the deal was offered to him by the sleazy prosecutor (who is now sleazy disrict judge Jack Skeen), the prosecution knew that DNA evidence would exonerate Cook. The results of the DNA testing, released weeks later, did exonerate Cook. Anyone who actually takes the time to learn about the case will see how obvious it was the Cook was innocent. Skeen and his slimy assistant, Dobbs, had more than enough evidence in their files to convict the real killer - James Mayfield. Because these tough law and order proseutors lacked the integrity to admit they made a mistake, the real killer died, having never been brought to justice. Before you make ignorant comments...take a little time to learn a little about what you're talking about 5:57.

This is a fairly common tactic of slimy prosecutors like Skeen. The current Smith County DA, Matt Bingham, who was mentored by Skeen, did the same thing in the recent Mineola Swingers Club case. He offered the defendants, who had been sentenced to life in prison, a deal that allowed them to plead only to injury to a child for time served because he knew his case had fallen apart and the defendants were likely innocent. Bingham lacks even a speck of integrity so he wouldn't admit he was wrong. If he thought for a minute that these people had really done what he had accused them of, he never would have offered them a deal that allowed them to avoid even having to register as sex offenders. He knew they were innocent.

Likewise, Skeen and Dobbs knew Cook was innocent. If they believed he had committed the heinous rape and murder of which he was accused, they never would have agreed to a deal that let him walk off of death row. These type of sleazy prosecutors put their political reputations ahead of justice. And, morons like 5:57 just lap up the lies the continue to tell without question.

3:09, on behalf of the (regular) GFB readers, we'd like to thank you for spanking 5:57's grey haired butt. Tick Tock is also a regular and constantly suffers from diarrhea of the keyboard. Who get's up at 5:57AM to puke on GFB? Who says "give me a break"? Little girls and retired former ADA's - that's who.

Thanks again for preventing another attempted highjacking of the GFB comment section regarding what seems to be one of the best informational postings on the topic.

Hey Grits, thanks for the Q. and for providing the answer(s). I personally can't thank you enough for finding the topic worthy of following and updating as needed.

I hope that eventually, the live show-up portion of the procedure includes mandating that no less than two citizens are required to be present. Subjects being derived from existing jury pools strictly for overseeing and out of sight of (and having no contact) detectives and victims. Maybe Jeff will see the validity of public overseers in addition to recording and support it? Thanks again.

"if eyewitness evidence gathered via flawed procedures is introduced and the defense objects, they cannot get it excluded"

Here's a question: why is exclusion of evidence a good thing? Is it because you are certain that 12 jurors would all be too foolish to see the flaws, even after they are pointed out by the defense? After all, if only one juror believed that the evidence was insufficient to convict, then no guilty finding can result. Why not simply give the jurors all the evidence and ask them to use their common sense and whatever other evidence can be provided to help them see the truth? After all, if the State concealed exculpatory evidence and justified it by saying that the evidence was unreliable, you'd be screaming bloody murder that the defense should have been allowed to present it anyway and let the jury make the decision whether to believe it or not.

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